State v. Muse

721 N.W.2d 661, 15 Neb. Ct. App. 13, 2006 Neb. App. LEXIS 166
CourtNebraska Court of Appeals
DecidedSeptember 12, 2006
DocketA-05-947
StatusPublished
Cited by13 cases

This text of 721 N.W.2d 661 (State v. Muse) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Muse, 721 N.W.2d 661, 15 Neb. Ct. App. 13, 2006 Neb. App. LEXIS 166 (Neb. Ct. App. 2006).

Opinions

Per Curiam.

I. INTRODUCTION

Gary S. Muse appeals his convictions and sentences on a number of criminal charges. Muse asserts on appeal that the record does not indicate the second amended information, upon which trial proceeded, was ever properly filed and that the trial court erred in granting a motion in limine, in admitting certain evidence, in accepting the verdict, and in finding Muse to be a habitual criminal. We find no merit to these assertions, and we affirm.

II. BACKGROUND

On May 16, 2005, Muse was arraigned on an amended information. Although the amended information does not appear in the transcript, the arraignment indicates that the amended information charged, and Muse was arraigned on, one count of first degree sexual assault, two counts of robbery, and a charge of being a habitual criminal. Muse was also arraigned on three counts of use of a deadly weapon in the commission of a felony, although, as noted below, the three use counts were apparently not actually included in the amended information. Muse pled not guilty to all charges.

On May 23,2005, the parties appeared before the district court for trial. The State requested leave to file a second amended information to add three counts of use of a deadly weapon in the [15]*15commission of a felony. According to counsel for the State, “[t]he original information had the [use counts] on it.” “For some reason,” he explained, “they didn’t get [included] on [the amended information] and for some ungodly reason I didn’t catch it until this weekend when I was going over the information because this is obviously a use case.” Muse objected to the request for leave to file a second amended information, indicated that he was ready to proceed with jury selection, and asked the court to deny the request.

At that point, the court asked Muse’s counsel if she was “aware the allegation in this case is use of a knife,” to which query Muse’s counsel responded, “Yes.” The court expressed its displeasure with the State’s amending “at the last minute” but found, “I do believe there’s no notice of [sic] surprise and the knife was involved and the state is entitled to amend and [Muse] is entitled to 24 hours’ notice.”

The record does not indicate that Muse was served with a copy of the second amended information at this time, and the second amended information was not read aloud in court. The court, however, immediately arraigned Muse on the three counts of use of a deadly weapon in the commission of a felony. The court asked Muse if he “wish[ed] to enter a plea [that day] with respect to those three charges,” and Muse responded, “Yes, not guilty.”

The court asked counsel for the State, “Do you have a copy of the [second] amended information?” Counsel for the State responded, “This was the original I was going to file.” The court then indicated to counsel for the State, “Probably ought to be just left with me and Fll put a note on it to file it.” The case proceeded to trial on May 24 through 26, 2005, and the jury returned a verdict on May 26 finding Muse guilty.

On appeal, the transcript to this court, which transcript is duly certified by a deputy clerk of the district court at its conclusion, begins with a recital of the district court’s assigned judge, judicial district, county, location, and term, followed by the further recital:

BE IT REMEMBERED, that in a certain cause lately pending in the District Court of Douglas County, State of Nebraska entitled: State of Nebraska against Gary S. Muse, appearing on Criminal Docket 165 Number 259 there was [16]*16filed in the office of the Clerk of said Court on the 23rd day of May, 2005, a certain Information, which said Information is in the words and following, to-wit:

SECOND AMENDED INFORMATION

The transcript then continues with photocopies of the filings in the district court, including a copy of the second amended information.

The notation of filing on the face of the second amended information does not appear in the frequently observed form of a file stamp. The first page of the second amended information represents a summary or title page and, except as we note below, appears to.have been typed by the State. The upper two-thirds of the page includes the case number, the case caption, the title of the document, a summary of the charges, and a list of witnesses. That information is separated from the bottom one-third of the page by a short line, and beneath that line is an area for filing information. In the lower area appear the words “FILED: May 23, 2005,” and immediately below those words appears a signature block stating the proper name and abbreviated title of the district court clerk followed below by the word “By:” and a signature line. Under the signature line appears the word “Deputy.” Beneath the signature block, the document provides spaces for designating the “Journal” and “Page” at which the second amended information was recorded. The signature line bears a signature from a deputy clerk of the district court; however, the journal and page designations remain blank. Immediately to the right of the deputy clerk’s signature, there appears an inexplicable stamp that indicates, “MADE MAY 26 2005.”

The last page of the second amended information includes three certificates. The first is a certificate indicating that the contents of the second amended information “are true to the best of my knowledge and belief’ and is signed by counsel for the State. That certificate is notarized by a deputy clerk of the court and indicates that the second amended information was sworn to before the deputy clerk on May 23, 2005. The second is a certificate indicating that the second amended information “is a full and true copy of the information in [this] case” and includes blanks to be filled in to designate the case caption, the date, and the signature of a deputy clerk of the court. None of the blanks [17]*17in this certificate are filled in. The third is a certificate added to the page by way of a stamp, indicating that “[a] certified copy of the information was delivered or mailed to [Muse] or counsel of record . . . .” This certificate indicates that a certified copy of the second amended information was not served on Muse until May 26, and it includes a signature of a deputy clerk of the court.

On July 6, 2005, Muse appeared for sentencing. At that time, Muse’s counsel asked the court to note that he had filed a “motion to arrest judgment”; he argued that the district court lacked jurisdiction because the second amended information was not properly filed with the clerk of the court prior to the verdict’s being rendered. The State argued that “[t]he fact that the clerk’s office didn’t put [its] stamp on [the second amended information]” on May 23, when it was allegedly filed, “does not render anything that [the] Court did ineffective or not valid.”

On July 7, 2005, the court filed an order sentencing Muse. The court sentenced Muse to 20 to 30 years’ imprisonment for first degree sexual assault, 10 to 20 years’ imprisonment for each of the two robbery convictions, and 10 to 20 years’ imprisonment for each of the three convictions of use of a deadly weapon in the commission of a felony. This appeal followed.

III. ASSIGNMENTS OF ERROR

Muse has assigned eight errors on appeal, which we consolidate for discussion to five.

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State v. Muse
721 N.W.2d 661 (Nebraska Court of Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
721 N.W.2d 661, 15 Neb. Ct. App. 13, 2006 Neb. App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-muse-nebctapp-2006.